Re BDS

[2011] QMHC 6

MENTAL HEALTH COURT

CITATION:

Re BDS [2011] QMHC 6

PARTIES:

APPEAL AGAINST DECISION OF THE MENTAL HEALTH REVIEW TRIBUNAL

PROCEEDING NO:

0048 of 2011

DELIVERED EX TEMPORE ON:

9 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2011

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr J Sundin

FINDINGS AND ORDERS:

1.    The appeal is dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – where the Attorney-General appeals a decision of the Mental Health Review Tribunal which revoked a forensic order in respect of the respondent – where counsel for the respondent submits the appeal should be dismissed as an abuse of process – whether appeal should be allowed or dismissed

COUNSEL:

L Syme for the Attorney General for Queensland
J Briggs for BDS

SOLICITORS:

Crown Law for the Attorney General for Queensland

Legal Aid Queensland for BDS

1. BODDICE J:  This is an application by the Attorney-General for the State of Queensland to appeal a decision of the Mental Health Review Tribunal made on 10 December 2010 wherein the Tribunal revoked a forensic order imposed in respect of the respondent, BDS.

1. At the commencement of the appeal, Ms Syme, who appears for the Attorney-General properly and fairly placed on the record that the grounds sought to be advanced by the Attorney-General in this appeal are new grounds which were not advanced below, and that there was no change in the circumstances that could be identified since the orders, the subject of the appeal.

1. Mr Briggs, who appears for the respondent, provided a written submission that the appeal should be dismissed as an abuse of process.  Mr Briggs added to his written submissions in respect of one matter which I will come to shortly.

1. The basis upon which it is submitted the appeal should be dismissed as an abuse of process is that there is a manifest unfairness in the appellant being allowed to proceed with this appeal in circumstances where it is submitted that the grounds of appeal are not properly based in law, contradict the position taken below, and where there is no adverse change in the respondent's circumstances since the decision, the subject of the appeal, and against a background that the respondent has not once but twice demonstrated a capacity to commit to voluntary treatment, and there is no clinical reason why a forensic order ought to be reinvoked and there may indeed be a risk factor if that were to occur.

1. In respect to the first ground that the Attorney-General's grounds are not properly based in law, Mr Briggs submits that as the grounds of appeal make reference to “ensuring”, they are grounds that are not based in law as the relevant question is whether the Court or Tribunal is satisfied on the balance of probabilities that there is no unacceptable risk to the community before the revoking of the order.

1. Mr Briggs submits that whilst that may be a legalistic approach to the use of the word "Ensure", the Attorney-General is the highest law officer of the State, and is required to act as a model litigant, and that it is incumbent upon the Attorney to be precise in the grounds of appeal, particularly as there is a disparity between the Attorney-General's position and that of the respondent who is a very vulnerable person having regard to his medical conditions.

1. Whilst there is merit in a submission that the Attorney-General should be precise in the grounds of appeal, and should ensure that those grounds have sufficient  particularity to identify precisely what is the issue, this Court is not satisfied it can be said that the grounds as framed are such that they are not properly based in law.

1. The other grounds for the submission that the appeal constitutes an abuse of process are, however, in a different category.  It is a matter of considerable concern that an appeal could be mounted relying upon a position which was not taken below and which contradicts the position taken in respect of the proceedings before the Tribunal.

1. The Court of Appeal has recognised in criminal matters that it is only in exceptional circumstances that the public interest would justify an appellate court acting upon an argument advanced on appeal which was not in accordance with submissions which had been made before the primary Court; R v. KU and others, ex parte the Attorney-General of Queensland [2008] QCA 154.

1. There is even greater reason why that approach should be adopted in respect of proceedings dealing with the vulnerable and how they are best to be treated and cared for within the system that exists in Queensland for the treatment of those who are mentally ill.

1. There would need, to be exceptional circumstances to justify a stance being taken by the Attorney-General which is contrary to the position that was adopted before the Tribunal.  Generally, those exceptional circumstances would need to be circumstances based on considerable concern in respect of the safety of the community having regard to a change in the circumstances of a person, the subject of the appeal.

1. The Attorney-General has fairly and properly conceded there is no change in circumstances since the decision, the subject of appeal, and that the grounds sought to be relied upon are not grounds that were advanced in the Tribunal below. In those circumstances, this Court is satisfied it would be an abuse of process to allow the appeal to continue on that basis.

1. It is not appropriate having reached that conclusion, to go on to consider whether there is, as is suggested, a concern that to reinvoke the forensic order may increase the risk to the respondent. The Court makes no finding in respect of those grounds of appeal.

1. The appeal is dismissed.

1. The Court directs that a transcript of proceedings be provided to the parties.